In Copyright Infringement, Availability Does Not Equal Distribution

In a recent court ruling, a judge said that the Recording Industry Association of America could not sue for copyright infringement simply because someone gave others access to a computer directory. There must be evidence that someone actually downloaded copyrighted material. However, in the same case, the judge ruled that the RIAA could have its investigators download songs from such a directory, and that would be proof of infringement.

The lesson to take is this: if you find your copyrighted material available for download someplace like Amazon.com, download a copy of your own materials as proof that it was made available. Then you can happily make your case, assuming that you've registered copyright.

Newspapers Using Blogs Without Permission?

Generally you might think that bloggers often take copyrighted material and reproduce them without permission online. But a UK blogger found that the Sunday Mail reproduced one of his entries without even asking for permission. The author sent a letter to the paper:

Not having worked for the Mail on Sunday before, and a stated wordage figure proving elusive, I pluck a conservative amount out of the air and stick it on the bottom of an invoice, which goes off via the kind auspices of the G.P.O. To the Mail on Sunday’s credit, they pay me my two hundred quid quicker than most biggish companies would, and John Wellington sends me his (what I am sure are sincere) apologies.

Good for him - but one graph of the reply from the paper (outside of the check) was disturbing:

We generally take the view that blogs published on the internet have already been placed in the public domain by their authors and, in case of amateur writers, most people are happy to have their work recognised and displayed to a wider audience.

There is apparently some history of this happening in the UK, once again the Mail on Sunday. And in some cases, it appears that bloggers are finding writing or even graphics used by papers without permission but then thinking they were fortunate. This commentary in the Guardian Unlimited (online presence of the Guardian in the UK) is correct in stating that online work also is intellectual property.

But in the United States, that doesn't help you a bit unless you have registered your copyright. Registering after infringement lets you take legal action, but you can only go after the actual profits made off your work, and you cannot ask for legal fee reimbursement. No, the only practical way to go is to register either before the infringement, or within three months of the first publication (which, in the case of blogs, means when it first appears online). If you are not registering the copyright of your new blog entries every three months, you are running the risk of someone using them and being unable to do much of anything about it.

The Magic of Fair Use

I've seen a lot of discussion about the Harry Potter copyright infringement suit. But for all the certainty lay people have, the experts are saying that, as with many fair use arguments, the case is a crap shoot. This article in the Hollywood Reporter is worth reading for those in the writing business, becasue you can never know enough about the conditions that control your fortunes - or lack of them.

Are States and State Employees Immune from Copyright Suits?

A February District court case in California invalidated part of US copyright law. The particular statue is the following:

Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal Court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 122, for importing copies of phonorecords in violation of section 602, or for any other violation under this title.

In the case Marketing Information Masters v. The Trustees of the California State University, the Pacific Life Holiday Bowl (organization that puts on the Holiday Bowl football game) had hired the plaintiff company in the past to undertake a survey to show the economic impact of the game on its home of San Diego. When the company tripled its fees for the 2004 survey, the organization instead turned to San Diego State University to instead do the research.

Given a copy of the previous work, the school had been told to use the same format of layout - which is something that has a copyright. The school did, the company found out, and it sued the university trustees and the professor, both of whom filed a motion to dismiss the suit under the 11th Amendment of the U.S. Constitution, which states:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The company argued that the part of copyright law at the top of this post precluded such a defense. The court ruled that part of the law unconstitutional because, essentially, the Constitution generally trumps legislative attempts to specifically limit it.

Does that mean if a state uses your work without asking, you are out of luck? Not exactly. Although the deep pockets of the state itself may be off limits, state employees are only protected to the extent that they are acting within their official capacity. If they infringe copyright, they are breaking the law, and if they are breaking the law, they cannot be acting within their official capacity, so you would sue the individual.

News and Photo Copyrights

There are some significant questions as to whether the press has a right to post the photos of the woman who allegedly had a sex for money relationship with former New York governor Elliot Spitzer. In my FotoCounty blog, I mention a piece in Photo District News as well as an angle that I haven't seen yet covered.

Warning: Possible Infringing Site

On a discussion board, a writer mentioned having found a piece she wrote for Health Magazine appearing on a site called Healthy Park (or Healthy Book). The writer gave me permission to pass this on. She said that what she wrote was owned by her and not available for use elsewhere without her permission. She also noticed a number of other Health writers' work on the site. I did some checking on Whois (the way you find who owns a domain), and the person is based in Beijing, and there is no email address listed. In other words, forget about trying to get in touch with the site owner, let alone get paid.

However, the ISP is Enom.com, which is based in Washington state. That means it is subject to the Digital Millennium Copyright Act of 1998, or DMCA. You can issue a DMCA take-down notice and have the ISP remove any copyright-infringing material. For information on how to formulate and file a DMCA take-down, click here.

When Is It Worth Chasing Online Infringement?

At a UK journalism site, there's an interesting Q&A with a lawyer about when it's worthwhile going after online infringement. Notice that the issue isn't whether you can, but whether you should bother. It's couched in terms of corporations, but just scale down the considerations (and the enforcement budgets), and there's something to learn for freelancers.

You could actually bring to this the idea of asymmetric threats, that you hear so often in a terrorism context. In this case, there is a low barrier to entry, both in money and time, for someone to infringe on copyright. And yet, protecting copyright faces a slope that quickly steepens, with costs of taking most legal action quickly going out of the reach for smallfry infringers that don't have deep pockets.

I think we could start to develop a methodology for deciding how and when to take action:

1. Review whether you have registered copyright for the item, or if you're still within the three month window of first publication. If the latter is the case, then immediately register the item, and don't wait until you "get around" to doing a group registration to save yourself a few dollars. If it wasn't registered and you've passed that three month period, then the best you can possibly do is use a DMCA take-down notice (check under Writers Resrouces on my blog site) to have the ISP remove the material, and maybe try bluffing to get some money.


2. Look at the infringer and decide whether it is an individual, small business, or mid-sized or large business.


3. Is the person or organization actually making money off your work, either by charging for it or using it as marketing?


4. Start with contacting the offender. If the person just seems to be a fan, either have them ask for permission and provide a link to your own site, or ask them to remove it. If the person doesn't, use a DMCA take-down notice. If the ISP is not in the United States, then you are out of luck and it's not worth pursuing any further.


5. If the site owner is a company making a business use of your work, send a demand letter, by certified mail, with an invoice for what you want to charge. Make removal of the material contingent on keeping the cost down (unless they decide to license it). If they want to settle for some smaller amount, take it and then use a DMCA take-down to get the material removed.


6. If the company is bigger than a mom-and-pop undertaking, then consider pressing your demand more strongly. But check wtih a lawyer how much it would cost to head to court. You may still decide that a DMCA action is the most effective use of your time.

Why reduce things to a specific process? Because that can take the gut knotting out of deciding what to do and let you quickly get to a point of knowing how you are going to handle a given situation.

So, all you conscientious and contentious writers and other creatives out there, does that make sense? Any sugestions for modifications?

Happy Copyright Awareness Week!

What, you think I make this stuff up? From March 10 through 14, we celebrate the protection that is copyright and try to teach students (and others) to respect the intellectual property of others. Take an article to be registered this week.

Record Labels Keep Copyright Infringement Dollars - Nothing to Musicians

Although it's in the realm of music, I think it behooves any independent creative person to know what's going on in other industries. According to a story in Home Theater, little to none of the millions that record labels have taken through copyright infringement suits ends up in the hands of the musicians and composers who created the works in the first place:

For example, three of the four majors banked $270 million in the lawsuit against Napster (barring Sony BMG, because BMG owns Napster). And all four have made deals with YouTube. But musicians are still waiting for the penny to drop—into their pockets, that is. Their managers and lawyers are now threatening to file lawsuits of their own, this time with the labels as defendants.

Sure, there will be complications of who is owned how much, but the concerning thing is that a) they will take as much time as they can as interest mounts in the bank, and b) the "legal expenses" are eating up most of the proceeds. Now, if they can successfully sue, then they probably registered copyright in a timely manner. That would mean that they could have - and, I'd bet, did - sue for legal expenses. So they get money for legal expenses, and then hold on to all the money for legal expenses? Sounds like the sort of double-dipping that recording labels are known for. Any bets as to whether publishers would be more forthcoming in similar circumstances?

Why Writers Should Seek Payment for Reuse

These days, you'll find many people, from consumers to large corporations, all asking why content providers should get a cut of revenues made off their work. I've recently been involved in some discussions along this line and have found the following points helpful - you might as well:

• This is an issue of ground rules and assumptions. In our society, writing is considered a form of intellectual property because of choice - copyright has not always existed, and when it didn't, the English printed and sold Mark Twain's works without paying him a penny, just as the Americans printed and sold Dickens without royalties. The reason that writing and other forms of creative expression get property protection is that society as a whole sees the need to encourage innovation of many types, but if we say that it's open field day on what people create, many now have an enormous financial disincentive to continue their work. That reduces the benefit to everyone. Now, some people might argue that the periods of protection are too long, and I might agree, but that is a separate argument.


• The reason to let property interests lapse is not so people can take the material as is and make money off it, but to let people build upon what has gone before. Those who focus on wanting free stuff might ask themselves what it would be like to buy a house and then be told that other people would also be making use of it without chipping in on the investment or doing any work of upkeep or maintenance. Yes, a house is tangible, but so what? Are love and hate an illusion because you don't see them floating around in the air?


• There are people who argue that all "content" should be free - whether writing, music, software, or art - and that taking it is ethical. To take someone else's work and to proclaim that it is ethically allowable to copy and sell it, making a profit without their permission and, in fact, in the face of their express disapproval, is just rationalization of an unethical act. Just because you don't like the way your neighbor cuts his lawn doesn't give you the right to tell him how to do it, which is essentially the argument being made with "all content should be free." Some activists think that any control over content prevents free exchange and common work. If someone wants to write open source code or make a book available for free download or turn an artwork into a free image file, that is the person's right. But if I’m putting the effort in to create something, and I’m the one whose business is making the investment to do something, then I'm the one who has control. Why should all my investment be taken out of my hands and given to someone else to profit from it? For the same reason, I cannot tell others not to freely distribute their own creations.


• A large part of the problem is that people often do not distinguish between intellectual property and a product. There is a difference between licensing a use and selling the property. If you rent out your car, you retain ownership and control, even if you allow someone to use it. If you sell some electronic device, the units are the physical property of those who buy them, but those buyers do not necessarily have the right to take the design of the device and incorporate it into something else for profit. When someone brings up the word product, try having them substitute something else, like design or underlying concept or brand or business plan. What makes writing different from many businesses is that it can make possible whole lines of separate income, and what the writer has is the ability to let someone pursue those businesses. The writer licenses an opportunity for a suitable fee.


• Many question why Hollywood writers should keep getting a cut of revenue. That's easy. When you sell copyright, you no longer retain control. However, Hollywood writers are in an odd situation. The only way they generally get to do business is to sell copyright, and yet the industry has long recognized that the writers have a right to ask for continued payments as part of the price of that copyright. In other words, they learned from the vaudeville performers of the early 20th century who allowed their acts to be filmed, receiving a single payment, and then found that no one was willing to pay them to do the same act. They had put themselves out of business. If the studios are not willing to pay the price that the writers think is fair for giving up all control, then the writers have the right to refuse to provide the material.


• If someone brings up the idea of a painting and how the buyer might sell it for more money down the line, you can agree that the painter doesn't get a cut of that money - because in this case, there are two things in question. One is the painting, which is a "product." It's a physical thing and once sold, the painter has no claim on it. But selling a painting does not convey the underlying copyright of the image. The painting's buyer cannot license the use of the image, but the painter still can, because the painter owns the copyright of the image. Similarly, a publisher only buys the use of a piece of writing for a given use. But that doesn't convey - and should not convey - underlying ownership and control of the writing. If that were true, then virtually no publishing venture of any type could exist. The only thing a company could sell would be some supporting services or simple delivery. While this has worked with Linux, given that much creation doesn't come out of groups of people who have full-time jobs, much of the content would be unavailable, because few people would have the resources to spend their time doing something that would pay nothing.

House Attempts to Change Copyright Protection

There's a bill in the U.S. House, sponsored by John Conyers of Michigan (D) and Lamar Smith of Texas (R), that, according to PC Magazine:

would further crack down on intellectual property violations, and create several new government positions with the power to enforce the new law.

Bill H.R. 4279 would create a special section in the Justice Department to deal with copyright violation and some provisions would add substantial powers to punish copyright violators, like seizing:

"any property used, or intended to be used, to commit or facilitate the commission of a violation … that is owned or predominantly controlled by the violator or by a person conspiring with or aiding and abetting the violator in committing the violation."

The DOJ is not fond of the measure, as it would force how they handled copyright infringement prosecution, though many business groups, particularly in movies and music, are soiling themselves in their collective excitement. But I'm not sure if the squeals of delight would continue if they thought through the problem and considered whether their own property might be impounded if they were violating copyright. Can you say massive numbers of web and database servers? But I suspect it's an issue of the sheerest optimism to think that any writer could get the powers that be to turn these penalties onto the business forces that lobby so heavily.

I also find it interesting that Conyers is involved. Could this be his mea culpa for sponsoring that bill, at the behest of the NWU/UAW, that would have allowed writers to take part in collective bargaining?

Some Info On Group Copyright Registration

I've found it frustrating to get the information needed for back copyright registration of published pieces. Even when you group them together (see the Writer Resource I have on this blog), the forms call for the volume and issue number. I recently wrote the Copyright Office about this, and here is the response

You need to provide a month day and year date of publication and volume and issue numbers (even if it is an estimate and to the best of your knowledge) in order to register the work.

In other words, even if you don't know, find out what the volume info is for this year, count back, and make an estimate on the number of issues that year and which one your piece was in. This doesn't take all the drudgery out, but it should make life easier if you don't have clips that included the volume and issue numbers.

Electronic Copyright Registration - Early Impressions

As I mentioned some time back, I am in the beta test group for the new online copyright registration pilot program. Here are some early impressions:

• The user interface is clunky. There are different sections in a copyright registration and you need to proceed through them all to register - reasonably enough. You can also save at any point, which is good. However, when you've saved, you don't get returned to the last section you were working on when you open the application; you get dumped to the end and have to go back, section by section, to where you were.


• There are things you pick up from trying to register that would be nice to know at the start. For example, you can at times get dumped out of an application - not unusual, as this is beta software, so you can't expect it to be ready to go. But I found out by accident that where you were gets saved in a category of Working applications. That is separate from Open applications, which means you've done what you need to do and are waiting to hear back.


• You can deposit electronic versions of documents. I think this is one of the most exciting features. I recently registered my web site and blogs - went onto each page and saved it into PDF form, did the application, and then uploaded the files. I had a hard time from my home machine, as we're far enough in the boondocks that we can't get cable or phone broadband. So the upload kept timing out. However, when I took the files to a wireless hotspot, they were up in a couple of minutes and I had a completed application.


• Online payment is easy - credit card using a federal government secured system, or an account that you can establish with the Copyright Office. Plus, the fee is only $35 for online registration, instead of $45. That may change, as it might be an enticement to be a guinea pig. But, hey, I'm happy with saving $10 a shot.


• Unfortunately, group registrations are not yet available, as they're working the kinks out. So if you have a number of previously published articles, you'll have to go the paper route.


• When things are running normally, they expect you to know that the registration is done (although you won't have the certificate at that point) within one to two weeks.

All in all, the system has some bugs, but a great deal of promise, and I've found myself more easily registering materials, both the web site and blogs as well as a number of unpublished plays that I put into a collection.

An added bonus that I just though of is that the Working applications stick around until you're done with them. So, when group registration becomes available, you should be able to enter information for published clips bit at a time, upload a PDF of the web site, and then close out the registration at the end of a quarter, pay your fee, and have everything set. This should make ongoing protection of your intellectual property a whole lot easier.

Freelance Class Action Settlement Gets Tossed Out

Word came out late today that the US Court of Appeals for the Second Circuit, in a three-judge panel, has vacated the settlement approval and sent the matter back to the District Court, calling for "proceedings consistent with this opinion." (Thanks to the Authors Guild for notifying people and publishing the decision, and for reader Debra Cash to have passed over word.) Here's a key point of the decision:

We have held, albeit outside the class action context, that district courts lack statutory subject matter jurisdiction over infringement claims arising from unregistered copyrights. ... The District Court never specifically addressed this potential jurisdictional flaw.

As the decision notes, this issue had come up during mediation - the defendants in the class action (the publishers) arguing that the Copyright Act states that "no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” And then the publishers argued that the District Court couldn't a case covering any unregistered works, let alone such an overwhelming number.

It was the desire on the publishers' part to get out of the mess that brought them to agree to include non-registered works. Unfortunately, "[t]he District Court never considered whether it had jurisdiction to certify a class consisting mostly of claims arising from unregistered copyrights, or to approve a settlement resolving those claims."

I'm no lawyer, but this is about as bad as it could get. The issue now is not whether the authors with unregistered works have been adequately cared for, but whether any of them can sue to get anything. The answer is no, and all the arguments that some have made about the total value of the infringed works being a billion dollars or more go completely out the window. The people with registered works could get together and sue, if any of the lawyers are still interested. The groups involved in the suit and settlement could also appeal to an en banc hearing of the Court of Appeals, meaning that all the judges sit to hear the argument. At best that's going to add, what, another year? And there's no telling how it would come out.

One judge did dissent, citing some recent cases that the technical underpinnings of the majority decision might be wrong, and that the need for registration might only go so far as "a cause of action for damages, but not a prerequisite to the possession of constitutional standing [to sue]." It seems like a strong argument, but will everyone keep going? At this point, I don't know.

I've disagreed with the objectors for various practical reasons. I know and like a number of them, consider them colleagues and friends, and understand the abhorrence about the default loss of rights to writers. But I've been concerned - and have argued in various places - that for the settlement to get tossed would end up becoming a de facto green light for publishers to do as they want and to ignore the vast number of writers who hadn't registered copyright.

What we are seeing now is a classic case of good and noble intentions on the part of most bringing unintended consequences. By objecting, they opened the case to review that has overturned the settlement on grounds that were never brought up in the objection. The practical outfall, I fear, is that the settlement is over and no one will get a penny. That, in turn, will embolden the publishers, because any retaliation would be virtually impossible.

College Students Organize to Oppose Copyright Restrictions

It's always a good idea to see potential business issues before they really hit. Here's one to monitor from a New York Times article called File-Sharing Students Fight Copyright Constraints. It seems that there's a national organization spouting up on campuses devoted to letting people freely share copyrighted material: music, software, research, books, and art:

Established at Swarthmore College in 2004, the group has chapters at more than 35 universities across the country. "We will listen to free music, look at free art, watch free film and read free books," reads its manifesto, posted on its Web site, freeculture.org. "We refuse to accept a future of digital feudalism."

The end is so much rhetoric, but it's a growing attitude that there shouldn't be restrictions, with its assumption that people would continue to create material for others to use. Sure, some would - and many would go off to do something else. However, it also suggests that there might be people people who would deliberately push to use things for free to prove a point.

Big Copyright Holder Win using DMCA

According to the Seattle Post-Intelligencer, Seattle-based photographer Lloyd Shugart won a $1.32 million judgment against shoe manufacturer Propét USA. According to the story, this appears to be the first time that someone has won such a ruling under the Digital Millennium Copyright Act of 1998, generally used by copyright holders to force web sites to remove content posted without their consent.

Filing DMCA Complaints

If you've ever found some of your work posted on the Web without your permission, you know it can be an upsetting experience. Someone is taking and using your property without so much as a by-your-leave. Many writers will try to track down the site owner and either threaten legal action (impossible to do if you haven't registered copyright) or send an invoice (often ignored).

There is another choice: the Digital Millennium Copyright Act of 1998. Under US law, if the ISP that hosts the Web site is in the US, then it must respond to a demand from a copyright holder to remove material that is posted without permission. I've added a file under Writer Resources with a summary of what you have to include in such a request and a short primer in how to find which ISP hosts a site.

Copyright Pre-Registration for Book Authors and the New Electronic Filing System Tests

I've often gone on at length - I'm sure people are bracing themselves now, but hang on, as there's no need - about the importance of registering copyright to protect yourself. But intellectual property piracy is a big problem - for example, the last book in the Harry Potter series ended up online before it hit the stores, and the publishers were doing everything they could to keep it under wraps.

So if you register a work as of a publication date, but it's pirated before the date, could that affect your rights under US copyright law? Apparently it can, so the Copyright Office, under the Artists' Rights and Theft Prevention Act of 2005, offers pre-registration for certain categories of works, including "literary works in book form":

Pursuant to the provisions of the Artists' Rights and Theft Prevention Act of 2005, the Register of Copyrights, after determining appropriate classes of works which have a history of infringement prior to commercial distribution, permits preregistration of unpublished works within such classes. Preregistration is not a substitute for registration; its purpose is to allow an infringement action to be brought before the authorized commercial distribution of a work and full registration thereof, and to make it possible, upon full registration, for the copyright owner to receive statutory damages and attorneys' fees in an infringement action.

A person who has preregistered a work is required, in order to preserve the legal benefits of preregistration, to register such work within one month after the copyright owner becomes aware of infringement and no later than three months after first publication. If full registration is not made within the prescribed time period, a court must dismiss an action for copyright infringement that occurred before or within the first two months after first publication. See U.S.C. 17 408(f), 411 and 412, as amended; also 37 C.F.R. 202.16, as added.

To be a bit emphatic for a moment, this doesn't replace copyright registration. But it does extend the full protection of the law, including statutory damages, backwards before publication. It's a reasonable step to take. For more information, go to this page on the US Copyright web site. You could also register copyright for the manuscript before publication and then register a second time the published book as a work based on the unpublished manuscript. But it's good to know about this option.

Also, for whoever is interested, I just received an email that I'm on the beta test list for the new electronic copyright registration system. I've just set up an account and am waiting for the Copyright Office to give me a call and say that I'm set to try registering some items.

It looks as though you'll be able to process all the paperwork online, pay via credit card, and track where things are, at least so far as I can tell from the little of the user interface I've seen. You'll be able to register a claim, file a preregistration (as mentioned above), check a submission status, track and track the status of various things. As I learn more, I'll file further reports.